BROOKS VS. DENT. 523

CHAUNCY BROOKS ET AL.
vs.

HENRY H. DENT,
ADMINISTRATOR D. B. N. OF
HENRY BRAWNER ET AL.

MARCH TERM, 1850.

[SICRIT TRUST—REBITLTINO TRUST AS AGAINST CREDITORS——STATCTE OF PRACTIS.]

A HUSBAND and wife, for a &ona fide and valuable consideration, may contract
for a transfer of property from him, to her.

A settlement upon the wife after marriage, in pursuance of a valid agreement
before marriage, is good and binding against the creditors of the husband.

In marshalling assets, lands descended, are to be applied before lands devised.

Evidence of declarations, made by a husband during coverture, is not admiswttle
against creditors of the husband, to establish a secret parol agreement
between him and the wife, in reference to property standing in the husband's
name during his lifetime.

But if the wife had performed her part of an agreement, made between her
husband and herself, she would have an equity as against the husband and
his heirs, to have it carried into effect on their side, though the agreement
was only by parol.

The court does not favor secret trusts, and will not allow them to be set up to
defeat the rights of creditors.

If it could be proved, that the land was purchased with the wife's money, then
as between her and the heirs at law, or volunteers claiming under her hus-
band, a trust would result to her, being implied by law, from the intention
of the parties, and the justice of the case, and which being expressly except-
ed from the statute of frauds, may be proved by parol.

But such resulting trust cannot be set up to the prejudice of the rights of sub-
sequent creditors.

The act of 1785, ch. 72, sec. 11, authorizes the court to direct a deed to be re-
corded, but with a limitation, that it shall not effect the rights of creditors
becoming such after the execution of the deed.

Where a party holding a bond of conveyance is in possession, and has paid
the purchase money for the land, the court will direct a conveyance, which
will prevail against creditors whose judgments intervened between the
equitable title by the bond and the legal title by the decree.

Where two persons executed a joint note, the estate of the one, will, under the
chancery rule, be charged with only half the amount, unless it is shown,
that he is the principal debtor, or that the other is insolvent.

The weight of American authority, is, that it is sufficient to bind a surety if
his engagement to pay the debt of another is in writing, although the conaidera-
twii, may not be reduced to writing. But where both the consideridion and the
engagement are in writing, the surely is bound, even according to the strict
English construction of the statute of feauds.